United States of America v. Jamaal Antonio Robertson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4486
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMAAL ANTONIO ROBERTSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge; Catherine C. Eagles, District Judge. (1:11-cr-
00296-CCE-1)
Argued: September 20, 2013 Decided: December 3, 2013
Before GREGORY and DUNCAN, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of
Virginia, sitting by designation.
Reversed by published opinion. Judge Gregory wrote the majority
opinion, in which Judge Duncan joined. Judge Wilson wrote a
dissenting opinion.
ARGUED: Ronald Cohen, Wilmington, North Carolina, for Appellant.
Michael A. DeFranco, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.

-- 1 of 12 --

2
GREGORY, Circuit Judge:
This appeal stems from an interaction between
Jamaal Robertson and Durham Police Officer Doug Welch in a bus
shelter. Officer Welch had come to the neighborhood around the
bus shelter in response to reports of a foot chase involving a
gun. After some initial investigations, Officer Welch and a
crew of police officers focused their response on a bus shelter
containing six individuals. Among them was Jamaal Robertson.
While several officers engaged the other bus shelter denizens,
Officer Welch approached and eventually searched Mr. Robertson,
who is a convicted felon and was carrying a firearm.
Mr. Robertson pled guilty to violating 18 U.S.C. § 922(g)(1).
Mr. Robertson argues that he never consented to the police
officer’s search, rendering it presumptively unreasonable absent
probable cause. We agree with Mr. Robertson. Because we find
that in submitting to the search, Mr. Robertson merely obeyed
the police officer’s orders without giving valid consent, we
reverse.
I.
Because this is a defendant’s appeal from a motion to
suppress, we construe the facts in the light most favorable to
the government. United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998).

-- 2 of 12 --

3
On April 14, 2011, the Durham Police Department received a
call reporting an altercation in MacDougald Terrace. The caller
stated that three African-American males in white t-shirts were
chasing an individual who was holding a firearm. Officer
Doug Welch drove to the area in his patrol car. After arriving,
he approached a group of people who were standing near where the
foot chase was reported. The group was apparently uninvolved in
the chase, however, and was unable to give Officer Welch any
useful information.
Officer Welch started to walk back to his patrol car. It
was then that he noticed a group of six or seven individuals in
a sheltered bus stop. Three of the individuals were African-
American males wearing white shirts. Jamaal Robertson was in
the bus shelter but was wearing a dark shirt.
Officer Welch approached the bus shelter to investigate.
By the time he arrived, three or four other police officers had
already converged on the scene. Their patrol cars, like
Officer Welch’s, were nearby. While the other officers were
already “dealing with the other subjects at the bus shelter,”
(J.A. 34), Robertson was still seated in the shelter, so
Officer Welch decided to focus on Mr. Robertson. Officer Welch
stopped about four yards in front of Mr. Robertson, who was
sitting with his back to the shelter’s back wall. Thus,
Mr. Robertson was blocked on three sides by walls, faced a

-- 3 of 12 --

4
police officer directly in front of him, and had another three
or four police officers nearby who were “dealing with” every
other individual in the bus stop. During the suppression
hearing, Officer Welch could not recall if all of these
individuals were searched, explaining that once he approached
the bus shelter, he focused entirely on Mr. Robertson.
After approaching Mr. Robertson, Officer Welch first asked
whether Mr. Robertson had anything illegal on him.
Mr. Robertson remained silent. Officer Welch then waved
Mr. Robertson forward in order to search Mr. Robertson, while
simultaneously asking to conduct the search. In response to
Officer Welch’s hand gesture, Mr. Robertson stood up, walked two
yards towards Officer Welch, turned around, and raised his
hands. During the search, Officer Welch recovered a firearm
from Mr. Robertson.
After being indicted for illegal possession of a firearm,
Mr. Robertson moved to suppress all evidence seized during the
search. Mr. Robertson argued that when he walked towards
Officer Welch, turned around and raised his hands, he was
obeying an order from Officer Welch. As such, he merely
submitted to a search, rather than validly consenting to one.
The district court denied the motion to suppress, and
Mr. Robertson filed a timely appeal.

-- 4 of 12 --

5
II.
The Fourth Amendment protects against “unreasonable
searches and seizures.” U.S. Const. amend. IV. Searches
without probable cause are presumptively unreasonable, but if an
individual consents to a search, probable cause is unnecessary.
See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). We
review for clear error a district court’s determination that a
search is consensual under the Fourth Amendment. See United
States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990). We apply a
subjective test to analyze whether consent was given, looking to
the totality of the circumstances. Wilson, 895 F.2d at 171–72.
The government has the burden of proving consent. See United
States v. Mendenhall, 446 U.S. 544, 557 (1980). Relevant
factors include the officer’s conduct, the number of officers
present, the time of the encounter, and characteristics of the
individual who was searched, such as age and education.
Lattimore, 87 F.3d at 650. Whether the individual searched was
informed of his right to decline the search is a “highly
relevant” factor. Wilson, 895 F.2d at 172.
At the outset, we emphasize that our ruling is based
exclusively on the facts as taken from Officer Welch’s
testimony. In the suppression hearing, there were many factual
discrepancies between the testimony of Mr. Robertson and Officer
Welch, but our reversal in this case is based entirely on

-- 5 of 12 --

6
Officer Welch’s version of events. We stress this because the
district court credited Officer Welch’s testimony but did not
credit Mr. Robertson’s. In general, we apply a “particularly
strong” clear error standard to factual determinations when they
are based on oral testimony. See Lattimore, 87 F.3d at 650–51.
This stems from district courts’ ability to observe witnesses’
demeanor firsthand. Id. However, because our reversal stems
from Officer Welch’s version of events, credibility
determinations play no part in our ruling. Rather, based on the
facts credited by the district court, we are compelled to
conclude that the government has failed to meet its burden of
proving consent. See Bumper v. North Carolina, 391 U.S. 543,
548–49 (1968) (ruling that the government’s burden of proving
consent “cannot be discharged by showing no more than
acquiescence to a claim of lawful authority”).
This case turns on the difference between voluntary consent
to a request versus begrudging submission to a command. Here,
Mr. Robertson’s behavior was the latter. The area around the
bus shelter was dominated by police officers. See Lattimore, 87
F.3d at 650 (citing number of officers present as a factor
weighing against consent). There were three patrol cars and
five uniformed officers with holstered weapons. Before the
encounter, Mr. Robertson observed every other individual in the
bus shelter get “handled by” the other police officers. (J.A.

-- 6 of 12 --

7
46.) As these individuals were being dealt with, yet another
officer approached the bus shelter and focused on Mr. Robertson.
The officer’s questioning was immediately accusatory:
Officer Welch’s first question was whether Mr. Robertson had
anything illegal on him. See Elie, 111 F.3d at 1145 (arguing
that friendly conversation rather than accusatory questions
militates towards consent). When Mr. Robertson responded with
silence, the officer waved Mr. Robertson forward and asked to
conduct a search. Mr. Robertson’s exit was blocked by
Officer Welch, who never informed Mr. Robertson that he had the
right to refuse the search. See Lattimore, 87 F.3d at 650
(citing individual’s knowledge of a right to refuse a search as
relevant to a consent finding). Officer Welch’s initial,
accusatory question, combined with the police-dominated
atmostphere, clearly communicated to Mr. Robertson that he was
not free to leave or to refuse Officer Welch’s request to
conduct a search. Mr. Robertson’s only options were to submit
to the search peacefully or resist violently. Mr. Robertson
chose the sensible route. See United States v. Albrektsen, 151
F.3d 951 (9th Cir. 1998) (“[Defendant] was forced to move so
that the entering officers would not knock him down. Consent
that is not.”) (internal quotations omitted).
Further, the police interaction in this case lacks factors
that indicate consent. In United States v. Elie, involving a

-- 7 of 12 --

8
search of the defendant’s hotel room, we found it highly
relevant that the defendant repeatedly asked the police to
search and secure the items in his hotel room. 111 F.3d 1135,
1145 (4th Cir. 1997). Similarly, in Lattimore, the defendant
gave verbal consent and also signed a written consent form after
the police officer carefully explained that he wanted to search
the defendant’s car. 87 F.3d at 649–50. In this case,
meanwhile, Mr. Robertson never gave verbal or written consent;
he merely surrendered to a police officer’s command. Further,
in both Elie and Lattimore, the interactions between the police
and the defendants occurred in broad daylight and were
characterized by relaxed, friendly conversation between the two
sides. See Elie, 111 F.3d at 1145 (“nothing in the record
indicates an environment that was coercive or intimidating. In
fact, Elie engaged the officers in friendly conversation”);
Lattimore, 87 F.3d at 651 (“at no time did the officer use force
or a threat of force to coerce Lattimore’s consent. In fact,
the two men engaged in friendly conversation”). The situation
here, meanwhile, lacks those indicia of consent.
Officer Welch’s initial question was accusatory and was met with
cold silence. Officer Welch never received verbal or written
consent. Mr. Robertson’s behavior was not a clear-eyed,
voluntary invitation to be searched; it was a begrudging
surrender to Officer Welch’s order.

-- 8 of 12 --

9
In sum, the facts as presented by Officer Welch are not
enough for the government to demonstrate valid consent.
Surrounded by police officers, Mr. Robertson watched as every
individual in a bus shelter next to him was handled by the
police. Soon thereafter, Mr. Robertson was confronted by a
police officer who immediately sought to verify whether
Mr. Robertson was carrying anything illegal before waving him
forward. Given these facts, we are compelled to conclude that
the government has failed to meet its burden of demonstrating
consent. Accordingly, we reverse the district court’s refusal
to suppress evidence.
REVERSED

-- 9 of 12 --

10
WILSON, District Judge, dissenting:
There are now two opinions with their own plausible
findings, one from the district court finding that Mr. Robertson
voluntarily consented to the search and the other from this
court finding the exact opposite. Both opinions purport to be
based upon all the facts and circumstances. The district
court’s findings, which include the determination that Officer
Welch was credible and that Mr. Robertson was not, follow an
evidentiary hearing. This court’s findings follow consideration
of the evidence from the written record. I respectfully dissent
because I believe under the circumstances Supreme Court
precedent requires this court to defer to the district court’s
plausible findings.
In a thorough, well-reasoned written opinion, the district
court made its findings of fact, which I distill for brevity’s
sake. Officers respond to a distress call that three men in
white t-shirts are chasing another man. According to the
caller, a firearm is involved. It is a known high crime area,
and it is nighttime. When Officer Doug Welch arrives in the
vicinity, three other officers are speaking with various people.
There are more non-officers present than officers. Officer
Welch notices Mr. Robertson and asks, “Do you have anything
illegal on you?” Mr. Robertson does not reply. The diminutive
officer, who is 5'2" tall, has not drawn his firearm (nor has

-- 10 of 12 --

11
any other officer) and simply follows up with a gesture and
question, “Do you mind if I search you?” Mr. Robertson, who is
much taller than Officer Welch, comes forward, turns, and puts
his hands above his head. Officer Welch believes Mr.
Robertson’s actions indicate his consent. The resulting search
produces a firearm. The entire encounter is quite brief,
lasting seconds. The conditions, in the words of the district
judge, “were neither coercive nor intimidating” and
“demonstrate[] by a preponderance of the evidence that Robertson
knowingly and voluntarily consented to the search of his
person.” (J.A. 88, 93)
“The voluntariness of consent to search is a factual
question, and as a reviewing court, we must affirm the
determination of the district court unless its finding is
clearly erroneous.” United States v. Lattimore, 87 F.3d 647, 650
(4th Cir. 1996)(en banc). As the Supreme Court has stated in
explaining this standard:
If the district court’s account of the evidence is
plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence
differently. Where there are two permissible views of
the evidence, the factfinder’s choice between them
cannot be clearly erroneous. This is so even when the
district court’s findings do not rest on credibility
determinations, but are based instead on physical or
documentary evidence or inferences from other facts.

-- 11 of 12 --

12
Anderson, 470 U.S. at 573-74 (internal citations omitted).
Here, the majority emphasizes that its ruling is based
exclusively on the facts as taken from Officer Welch's testimony
and, therefore, is not inconsistent with the “clearly erroneous”
standard of review. According to the majority, “[t]his case
turns on the difference between voluntary consent to a request
versus begrudging submission to command,” and “Mr. Robertson’s
behavior was the latter.” The majority then lists those
circumstances it finds compelling in reaching its conclusion. I
do not dissent because I find the majority’s findings and
opinion to be illogical or implausible. To the contrary, I find
them every bit as logical and plausible as I find the district
court’s findings and opinion. But as the Supreme Court has
cautioned, the question is not whether the court of appeal’s
“interpretation of the facts [is] clearly erroneous, but whether
the District Court’s finding [is] clearly erroneous.” Id. at
577. In my view it is not. Consequently, I respectfully
dissent.

-- 12 of 12 --